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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: X.R. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: A.W., MOTHER :
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:
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: No. 715 WDA 2021
Appeal from the Decree Entered June 1, 2021
In the Court of Common Pleas of Fayette County
Orphans’ Court at 20 ADOPT 2021
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: JANUARY 28, 2022
A.W. (Mother) appeals from the decree terminating her parental rights
to her son, X.R. (Child), born October 2019.1 In addition, Mother’s counsel
has filed a petition to withdraw and brief pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). After review, we grant the petition to withdraw and affirm the decree.
Fayette County Children and Youth Services (CYS) became involved with
Mother and Child after receiving a report on November 6, 2019, shortly after
Child’s birth, alleging that Child was living with a family friend and appeared
malnourished, underweight, and with dry skin on his face. N.T., 5/27/21, at
12. CYS investigated and confirmed Child was living with the family friend
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* Retired Senior Judge assigned to the Superior Court.
1Child’s father, J.R., relinquished his parental rights voluntarily and has not
appealed.
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while Mother was homeless. Id. at 13. Mother had been in CYS’s care for
two years “due to mental health concerns and parent/child conflict” before
reaching adulthood, and CYS had concerns about Mother’s mental health. Id.
CYS received a second report on January 4, 2020, alleging that Mother
had stated she was “going to kill” Child, and was hearing the voice of Child’s
father, who was telling her to kill Child. Id. at 13-14. CYS staff and police
went to the home where Mother was staying, and Mother was subsequently
committed for inpatient mental health treatment. Id. at 14. Shortly
thereafter, on January 13, 2020, the juvenile court adjudicated Child
dependent. Child has been in the same foster placement since January 15,
2020. Id. at 12-14.
Following the dependency adjudication, CYS prepared a family service
plan (FSP) comprised of objectives for Mother to facilitate reunification. Id.
at 14-15. Mother was to maintain a relationship with Child, but failed to do
so. CYS arranged supervised, in-person visits beginning in January 2020, but
Mother last visited Child in-person in February 2020. Id. at 19. Overall,
Mother attended five of 47 scheduled in-person visits. Id. at 20. Mother was
also afforded 30 virtual visits (from March - May 2020 due to the COVID-19
pandemic), but only participated in 11. Id. at 20. Mother’s last contact with
Child occurred during a virtual visit in April 2020. Id.
Mother also failed to obtain a drug and alcohol evaluation or attend
parenting classes. Id. at 18. She additionally failed to maintain stable
housing. Id. at 19. Mother moved from place to place and was sometimes
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homeless. Id. From May to July 2020, Mother was incarcerated on burglary
and criminal trespass charges.2 Id. at 16, 30-31.
Finally, although Mother generally complied with her mental health
objective by obtaining an evaluation and treatment, CYS continued to be
concerned with Mother’s mental health. Id. at 15-17. Mother did not receive
treatment while incarcerated and missed most of her appointments in March
2021. Id. at 16. Mother persisted in believing that her deceased ex-fiancé,
E.H., was still alive and contacting her. Id. at 17, 38-40, 45-47, 56-57.
On January 29, 2021, CYS filed a petition to terminate Mother’s parental
rights to Child pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).
The orphans’ court conducted a hearing on May 27, 2021, during which it
heard testimony from CYS caseworker, Alexandria Paull; Mother; and Mother’s
friend, P.D.3 At the conclusion of the hearing, the court dictated a decree on
the record terminating Mother’s rights. The court entered its decree on June
1, 2021. Mother timely filed a notice of appeal on June 22, 2021, along with
a concise statement of errors complained of on appeal. Mother’s counsel filed
a petition to withdraw and Anders brief in this Court on September 27, 2021.
We begin by addressing the petition to withdraw and Anders brief. See
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (“‘When
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2 Resolution of the charges is not clear from the record, although Mother
testified she would be on house arrest until May 2022, and would thereafter
serve a year of probation. N.T., 5/27/21, at 41-42.
3 Child was approximately 19 months old at the time of the hearing and was
represented by a guardian ad litem (GAL).
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faced with a purported Anders brief, this Court may not review the merits of
the underlying issues without first passing on the request to withdraw.’”)
(quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super.
1997)); see also In re V.E., 611 A.2d 1267 (Pa. Super. 1992) (extending
the Anders procedure to appeals from involuntary termination decrees).
To withdraw pursuant to Anders, counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009)). Counsel must also provide this Court with a copy of the letter advising
the appellant of his or her rights. Commonwealth v. Millisock, 873 A.2d
748, 752 (Pa. Super. 2005).
Finally, the Pennsylvania Supreme Court has directed that Anders briefs
must:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 978 A.2d at 361.
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Here, Counsel avers in his petition to withdraw that he has determined
Mother’s appeal is frivolous after conducting a thorough and conscientious
examination of the record. Counsel also avers that he mailed Mother a letter
explaining her rights, and has attached a copy of the letter to his Anders
brief. Counsel’s letter complies with our law, as it informs Mother that she
may retain new counsel or proceed pro se and raise any additional arguments
she deems worthy of our attention. Importantly, the letter indicates Counsel
provided Mother with a copy of the petition to withdraw and Anders brief, and
Mother appears on the certificates of service on both filings. Counsel’s Anders
brief includes a summary of the facts and procedural history of this case, an
issue that could arguably support Mother’s appeal, and Counsel’s assessment
of why that issue is frivolous, with citations to the record and relevant legal
authority. As Counsel has complied with Anders, we review the issue
presented in his brief. We also “conduct an independent review of the record
to discern if there are any additional, non-frivolous issues overlooked by
counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (footnote omitted).
Counsel’s Anders brief identifies the following issue: “Did the
[orphans’] court abuse its discretion in terminating the parental rights of the
natural mother, [Mother], as [CYS] failed to present sufficient evidence to
sustain its burden of proof?” Anders Brief at 3 (unnecessary capitalization
omitted).
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Our standard of review in termination of parental rights appeals requires
us to accept the findings of fact and credibility determinations of the orphans’
court if they are supported by the record. In re T.S.M., 71 A.3d 251, 267
(Pa. 2013) (citing In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012)). If
the record supports the court’s findings, we must determine whether the court
committed an error of law or abused its discretion. Id. An abuse of discretion
does not occur merely because the record could support a different result. Id.
(citing In re Adoption of S.P., 47 A.3d at 827). We find an abuse of
discretion “‘only upon demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.’” Id. (quoting In re Adoption of S.P., 47 A.3d at
826).
Pennsylvania’s Adoption Act governs the involuntary termination of
parental rights. See 23 Pa.C.S.A. § 2101-2938. It requires a bifurcated
analysis, in which the orphans’ court focuses initially on the parent’s conduct
pursuant to Section 2511(a). In re L.M., 923 A.2d 505, 511 (Pa. Super.
2007) (citing In re R.J.S., 901 A.2d 502, 508 (Pa. Super. 2006)). If the court
finds the party seeking termination has established grounds pursuant to
Section 2511(a), it must then turn its attention to Section 2511(b), which
focuses on the child’s needs and welfare. Id. A critical element of Section
2511(b) is the discernment of whether the child has a bond with his or her
parent, and what effect severing that bond may have on the child. Id. (citing
In re R.J.S., 901 A.2d at 508; In re C.P., 901 A.2d 516, 520 (Pa. Super.
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2006)). The party seeking termination bears the burden of proof under both
Section 2511(a) and (b) by clear and convincing evidence. In re C.P., 901
A.2d at 520 (citing In re B.L.L., 787 A.2d 1007 (Pa. Super. 2001)).
Instantly, the orphans’ court terminated Mother’s parental rights
pursuant to Section 2511(a)(1), (2), (5), (8), and (b). We need only agree
with the court as to any one subsection of Section 2511(a), as well as Section
2511(b), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Thus, we analyze the court’s decision pursuant to Section 2511(a)(1)
and (b), which provide:
(a) General rule.--The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing of
the petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused
or failed to perform parental duties.
***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511(a)(1), (b).
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To satisfy the requirements of Section 2511(a)(1), the party requesting
termination must prove conduct by the parent “sustained for at least the six
months prior to the filing of the termination petition, which reveals a settled
intent to relinquish parental claim to a child or a refusal or failure to perform
parental duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citing
In re R.J.S., 901 A.2d at 510). If the party does so, the orphans’ court must
consider the parent’s explanation for his or her abandonment of the child, in
addition to any post-abandonment contact. Id. (quoting Matter of Adoption
of Charles E.D.M., II, 708 A.2d 88, 92 (Pa. 1998)). This Court has
emphasized that a parent does not perform parental duties by displaying a
merely passive interest in the development of a child. In re B.,N.M., 856
A.2d 847, 855 (Pa. Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005)
(quoting In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003), appeal denied,
859 A.2d 767 (Pa. 2004)). Rather,
[p]arental duty requires that the parent act affirmatively with
good faith interest and effort, and not yield to every problem, in
order to maintain the parent-child relationship to the best of his
or her ability, even in difficult circumstances. A parent must utilize
all available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed in
the path of maintaining the parent-child relationship. Parental
rights are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities while
others provide the child with his or her physical and emotional
needs.
Id. (citations omitted).
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In this case, the orphans’ court determined that Mother failed to perform
parental duties. Orphans’ Court Opinion, 8/26/21, at 7-8. The court observed
that Mother had not seen Child in over a year, and found no merit to Mother’s
explanations for her failure to see Child, which included a lack of
transportation and having “other things to do[.]” Id. at 4-6. The court also
found that Mother did not comply with her FSP objectives. Id. at 7. The court
explained that Mother’s mental health treatment had been sporadic or stopped
completely at times, and Mother failed to obtain a drug and alcohol evaluation,
attend parenting classes, or maintain stable housing. Id. Though Mother had
been living with her friend, P.D., for approximately three months, the court
noted Mother’s history of moving from place to place. Id.
The record supports the orphans’ court’s findings. As summarized
above, CYS filed its termination petition on January 29, 2021, such that the
six-month period for purposes of Section 2511(a)(1) began on July 29, 2020.
Mother’s last contact with Child, which Mother conceded, occurred in April
2020. N.T., 5/27/21, at 20, 30, 43. Accordingly, Mother refused or failed to
perform parental duties during the statutory six months, and it was incumbent
on the orphans’ court to consider Mother’s explanation for doing so. In re
Z.S.W., 946 A.2d at 730.
Mother initially blamed her failure to visit Child on lack of transportation.
N.T., 5/27/21, at 25, 30-31. However, the CYS caseworker, Alexandria Paull,
contradicted this explanation, and testified that CYS had arranged
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transportation for Mother. Id. at 20-21. Mother subsequently admitted that
CYS had arranged for someone to pick her up and bring her to visits, although
she also claimed she still lacked transportation, and testified the person in
whose home she was staying was “running from warrants” and would not
allow anyone else to come to the home. Id. at 32, 43-44.
Mother’s explanation for her lack of contact with Child shifted during her
testimony. She cited other factors as reasons for her lack of contact with
Child, including incarceration, losing her phone, “having problems,” and the
abusive conduct of her ex-fiancé, E.H. Id. at 30-31, 49-50. Mother also
testified about “poisoning” from a medication she had taken, and claimed the
visitation provider told her she could no longer have visits. Id. at 26-27, 39-
40, 49-50. To the contrary, Ms. Paull testified that the visitation provider did
not limit visits, “with the exception of when Covid hit, but then after that
[Mother] was able to have visits with her child.” Id. at 50. Ms. Paull testified
that she discussed with Mother the importance of Mother seeing Child and
establishing a bond, but Mother replied she had “a lot of stuff going on.” Id.
at 21.
Consistent with the above evidence, the orphans’ court acted within its
discretion in concluding Mother had failed to provide a sufficient explanation
for her lack of contact with Child. Further, the record supports the court’s
finding that Mother failed to comply with her FSP goals, as she did not obtain
a drug and alcohol evaluation, attend parenting classes, or maintain stable
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housing. Id. at 18-19. Accordingly, we discern no error of law or abuse or
discern by the court in finding that Mother failed to perform her parental duties
under Section 2511(a)(1).
We next examine termination of Mother’s rights pursuant to Section
2511(b). As noted above, Section 2511(b) focuses on a child’s needs and
welfare, including consideration any bond the child may have with the parent,
and the effect of severing that bond. L.M., 923 A.2d at 511. The court must
determine whether the bond is necessary and beneficial and whether
severance of the bond will cause the child extreme emotional consequences.
In re Adoption of J.N.M., 177 A.3d 937, 944 (Pa. Super. 2018), appeal
denied, 183 A.3d 979 (Pa. 2018) (quoting In re E.M., 620 A.2d 481, 484–85
(Pa. 1993)). The existence of a bond, while significant, is only one of many
factors courts should consider when addressing Section 2511(b). In re
Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting In re
N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)). Other factors include “the safety
needs of the child, and . . . the intangibles, such as the love, comfort, security,
and stability the child might have with the foster parent.” Id.
In this case, Child is very young, having been born in October 2019, and
adjudicated dependent in January 13, 2020. N.T., 5/27/21, at 12. He began
living in his current foster home as an infant on January 15, 2020. Id.
Thereafter, Child had little contact with Mother, and accordingly, the orphans’
court concluded that Child did not have a bond with Mother. Orphans’ Court
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Opinion, 8/26/21, at 6-7. On the other hand, the court found Child was
bonded with his pre-adoptive foster family. Id. at 7. At the time of the
termination hearing on May 27, 2021, Child was a year and seven months old,
and had lived one year and four months with his foster family.4 These
circumstances, and the record overall, support the finding that Child did not
have a bond with Mother. See Matter of Adoption of M.A.B., 166 A.3d 434,
449 (Pa. Super. 2017) (“a child develops a meaningful bond with a caretaker
when the caretaker provides stability, safety, and security regularly and
consistently to the child over an extended period of time.”).
Finally, we note the orphans’ court’s express concern regarding Mother’s
ongoing mental health issues with respect to Child’s needs and welfare, and
in particular, Child’s safety. For example, Mother testified adamantly that her
deceased ex-fiancé, E.H., was still alive. Id. at 38-40, 45-47. Mother
maintained E.H. contacted her “continuously,” and even called her “the day
before yesterday,” during which “he said he was going to send the Hell’s
Angels here to burn the house down and kill me.” Id. at 38. Following this
testimony, CYS recalled Ms. Paull for rebuttal. Ms. Paull testified that CYS had
consulted official records while Mother was testifying, and confirmed E.H. had
died five months earlier. Id. at 56-57.
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4 Ms. Paull agreed that Child’s foster family would be “open to adopt” him if
the orphans’ court terminated Mother’s parental rights. N.T., 5/27/21, at 22.
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In sum, we discern no error or abuse of discretion by the orphans’ court.
Our independent review confirms Mother is not entitled to relief, and the
record does not reveal any non-frivolous issues overlooked by Mother’s
counsel. We therefore grant counsel’s petition to withdraw and affirm the
decree terminating Mother’s parental rights.
Petition to withdraw granted. Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2022
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